State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 17, 2016 106893
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
CODY LEMON,
Appellant.
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Calendar Date: February 10, 2016
Before: Peters, P.J., Garry, Rose, Devine and Clark, JJ.
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David E. Woodin, Catskill, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.
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Devine, J.
Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered May 22, 2014, convicting defendant
upon his plea of guilty of the crimes of burglary in the second
degree, criminal possession of a weapon in the second degree and
grand larceny in the fourth degree.
Pursuant to a negotiated plea agreement, defendant waived
indictment and pleaded guilty to burglary in the second degree,
criminal possession of a weapon in the second degree and grand
larceny in the fourth degree as charged in a superior court
information. The plea agreement included a waiver of appeal and
satisfied a multitude of other pending criminal charges primarily
emanating from larcenies, as well as violation of probation
petitions. The agreement provided that the aggregate sentence
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would be capped at 10 years and could be as low as five years,
with five years of postrelease supervision. Consistent with the
agreement, County Court imposed an aggregate prison sentence of
eight years to be followed by five years of postrelease
supervision, and ordered defendant to pay restitution. Defendant
appeals.
Defendant initially contends that his waiver of appeal was
invalid, and we agree. A review of the record reveals that
County Court failed to explain the significance of an appeal
waiver or convey that it is "separate and distinct from those
rights automatically forfeited upon a guilty plea" (People v
Lopez, 6 NY3d 248, 256 [2006]; see People v Sanders, 25 NY3d 337,
340-341 [2015]; People v Rabideau, 130 AD3d 1094, 1094-1095
[2015]; People v Harris, 121 AD3d 1423, 1424 [2014], lv denied 25
NY3d 989 [2015]). Although defendant acknowledged that he had
signed a written waiver of appeal during the plea proceedings, no
inquiry was made as to whether he had read and understood it (see
People v Rabideau, 130 AD3d at 1095). As defendant's
understanding of the appeal waiver is not reflected on the face
of the record, it is invalid and defendant is not precluded from
challenging the severity of the sentence (see People v Zabawczuk,
128 AD3d 1267, 1269 [2015], lv denied 26 NY3d 937 [2015]).
Turning to that challenge, the record reflects that, while
on probation, defendant engaged in a protracted crime spree in
which he victimized many members of his community. The sentence
imposed by County Court was far less than the consecutive
sentences allowed for these separate criminal acts (see Penal Law
§ 70.25 [2]; People v Ramirez, 89 NY2d 444, 451 [1996]) and below
the promised 10-year cap. In view of these facts and his prior
criminal history, we are not persuaded that the sentence imposed
was harsh or excessive or that extraordinary circumstances
warrant a reduction in the interest of justice (see CPL 470.15
[6] [b]; People v Ashlaw, 126 AD3d 1236, 1237 [2015]).
Peters, P.J., Garry, Rose and Clark, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court